Argued October 5, 2011
DECIDED FEBRUARY 6, 2012
Reargued En Banc September 27, 2012
Petition for Review of an Order of the Board of Immigration Appeals. No. A096 158 857
Before Easterbrook, Chief Judge, and Posner, Flaum, Manion, Kanne, Rovner, Wood, Williams, Sykes, Tinder, and Hamilton, Circuit Judges.
Rovner, Circuit Judge.
United States asylum laws grant refuge to those who have been persecuted in foreign lands because of race, religion, nationality, membership in a particular social group, or political opinion. The complexity surfaces when we try to define terms such as persecution and "social group"—the latter of which has perplexed this court and others, and is in the spotlight once again in this case.
Johana Cece, a native of Albania, arrived in the United States in 2002, and sought asylum within the requisite time allotted. The immigration judge deemed Cece credible, and therefore we use her testimony and the immigration judge's factual findings as a basis to set forth the facts of the case.
Cece lived with her family in Korçë, Albania until her parents left the country in 2001. As a young woman living alone in Albania, Cece caught the attention of a well-known local criminal gang that was notorious for forcing women into prostitution rings. One of the leaders of that gang, a man Cece knew as "Reqi, " began following her around town, offering her rides, and inviting her on dates. Cece knew Reqi by reputation—that is, for his membership in a gang known for its participation in prostitution rings, murder of other gang members, and the drug trade. Cece also testified that the gang members appeared to enjoy complete immunity from the law. Cece had long seen Reqi near her high school, where he cruised the area looking for girls and offering drugs to young women. Cece had heard that one of these women had been kidnapped by Reqi and forced into prostitution. Reqi's stalking culminated in a confrontation on June 4, 2001, when Reqi followed Cece into a cosmetics store, cornered her, and pinned her to a wall. There he confronted her and asked her why she would not go out with him. Reqi made it clear to Cece that he could not be stopped and that he would find her and do whatever he wanted to her. She told him to let go, but he merely tightened his grip and held her there. There were several people in the store, but no one came to her aid. Cece surmised that they too were frightened by Reqi. Cece's friend convinced her to report the assault to the police, but the police perfunctorily dismissed her accusation, claiming she lacked proof.
A few days later someone threw a rock through Cece's window. She stopped going out, stopped going to school, and made plans to leave Korçë.
Cece moved 120 miles north to Tirana to stay with her sister, who lived in a university dormitory, but her safety there was short-lived. A year later, her sister left the country and, without access to the dormitory or family with whom to live, Cece was once again left alone to fend for herself. As a single woman living alone in Albania, Cece claims she remained a target no matter where she lived.
In 2002, fearing for her safety, Cece fraudulently procured an Italian passport and came to the United States under the Visa Waiver Program. Less than a year later, she applied for asylum and withholding of removal, asserting that she feared returning to Albania because she believed that as a young woman living alone she would be kidnapped and forced to join a prostitution ring.
At Cece's hearing, Dr. Bernd Fischer, a Professor in Balkan History at the Indiana University–Purdue University Fort Wayne and an expert on Albania, testified that Cece's experience was "unfortunately usual." (R. 223). Dr. Fischer described a very serious problem of human trafficking for prostitution in Albania in which gangs, often with the protection, and at times the participation of the police, kidnap women and spirit them out of the country either through Greece, Kosova, or across the Adriatic Sea to Italy. Dr. Fischer described how anomalous it is for a single woman to live by herself in Albania, that such a woman would be an ideal target for a trafficker, particularly if she had been such a target in the past, and that the problem was pervasive throughout Albania and not limited to Cece's home village of Korçë. Dr. Fischer testified that although gang members primarily target women between the ages of sixteen and twenty-six, many women outside of the target age range are also forced into prostitution. Finally, he noted that the Albanian judicial system does not adequately enforce laws against traffickers. Reports issued by the U.S. State Department in 2004 corroborated his representations of a large-scale problem with human trafficking in Albania. (R. 573-84).
The immigration judge granted Cece asylum in 2006, concluding that she belonged to the group of "young women who are targeted for prostitution by traffickers in Albania, " and that the Albanian government was unwilling or unable to protect such women. (R. 128-29). He noted in particular that Albania stands out in Europe as a major country of origin of traffickers in prostitution; the government's judicial system is not effective against the problem; Albania suffers from a major and ongoing trafficking of young women by gangs; and there is no prospect in the foreseeable future of the government being able or willing to address the problem. (R. 129). The immigration judge also found Cece's testimony credible and her fear reasonable.
The Board of Immigration Appeals vacated the decision of the immigration judge, however, finding that Cece failed to establish past persecution and had successfully relocated within Albania. (R. 330-31). Specifically, the Board held that the immigration judge erred in determining that Cece was a member of a social group of young women who have been targeted for prostitution by traffickers, noting its precedent that a social group must have social visibility and share a narrowing characteristic other than the risk of being persecuted.
On remand, the immigration judge expressed concern with the Board's conclusion that Cece did not belong to a protectable social group and that she could safely relocate within the country. (R. 114-116, 119-120). The immigration judge, however, recognized that he was bound by the Board's determinations and denied the application for asylum. The Board dismissed Cece's second appeal, emphasizing that Cece's proposed group was defined in large part by the harm inflicted on its members and did not exist independently of the traffickers. The Board also concluded that there was insufficient evidence in the record that internal relocation was not reasonable. (R. 9).
Cece appealed to this Court and over one dissent, the panel denied Cece's petition for review, agreeing with the Board that Cece had not named a cognizable social group and that the Board had sufficient evidence to conclude that Cece could relocate safely within Albania. We granted Cece's petition for rehearing en banc and vacated the panel's opinion and judgment.
To be eligible for asylum, an applicant must show that she is "unable or unwilling to return" to the country of his nationality "because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. §1101(a)(42)(A). An applicant who successfully proves that she was subject to past persecution is presumed to have a well-founded fear of future persecution, which the Attorney General can rebut by demonstrating a change in conditions in the applicant's home country. 8 C.F.R. § 1208.13(b)(1); Mustafa v. Holder, 707 F.3d 743, 750-751 (7th Cir. 2013). The applicant must show that she fits within one of those categories and that there is "a nexus between her fear of future persecution and one of those five protected grounds." Escobar v. Holder, 657 F.3d 537, 542 (7th Cir. 2011); Ishitiaq v. Holder, 578 F.3d 712, 715 (7th Cir. 2009).
The primary question in this case is whether Cece has proffered a particular social group that is cognizable under 8 U.S.C. § 1101(a)(42)(A). Whether a group constitutes a particular social group under the Immigration and Nationality Act is a question of law that we review de novo, while giving Chevron deference to the Board's reasonable interpretation set forth in precedential opinions interpreting the statute. Chevron, U.S.A., Inc. v. Natural Resources Def. Council, Inc., 467 U.S. 837, 842-43 (1984); Escobar, 657 F.3d at 542. See also, Ayala v. Holder, 640 F.3d 1095, 1096-97 (9th Cir. 2011) (whether a group constitutes a particular social group under the Immigration and Nationality Act is a question of law, which a court of appeals reviews de novo); Castaneda-Castillo v. Holder, 638 F.3d 354, 363 (1st Cir. 2011) (same); Crespin-Valladares v. Holder, 632 F.3d 117, 124 (4th Cir. 2011) (same); Gomez-Zuluaga v. Att'y Gen. of United States, 527 F.3d 330, 339 (3d Cir. 2008) (same); Malonga v. Mukasey, 546 F.3d 546, 553 (8th Cir. 2008) (same); Castillo-Arias v. United States. Att'y Gen., 446 F.3d 1190, 1195 (11th Cir. 2006) (same); Cruz-Funez v. Gonzales, 406 F.3d 1187, 1191 (10th Cir. 2005) (same).
Under the deference analysis set forth in Chevron, if congressional purpose is clear, we must give it effect. Chevron, 467 U.S. at 842-43. We also give deference to precedential decisions of the Board. Id. at 843; Escobar, 657 F.3d at 542. Our duty at this stage is to uphold the Board's determination if it is supported by substantial evidence—that is, reasonable, substantial, and probative evidence on the record considered as a whole. Escobar, 657 F.3d at 545. If Congress has directly spoken to the precise question at issue, then a court must follow that clear guidance. Chevron, 467 U.S. at 842-43. If, however, the statute is silent or ambiguous, the court must defer to authoritative agency interpretations of the law. Id. at 844. Congress did not directly address what it meant by a protected "social group" in the Immigration and Nationality Act, so we look to see how the agency has interpreted the statute.
The Board took on the task of defining "social group" in Matter of Acosta, 19 I. & N. Dec. 211, 233-34 (1985), overruled, in part, on other grounds by Matter of Mogharrabi, 19 I. & N. Dec. 439, 439 (BIA 1987) limiting it to groups whose membership is defined by a characteristic that is either immutable or is so fundamental to individual identity or conscience that a person ought not be required to change. Id. This Circuit has deferred to the Board's Acosta formulation of social group. See Lwin v. INS, 144 F.3d 505, 512 (7th Cir. 1998).
The immutable or fundamental characteristic might be membership in an extended family, sexual orientation, a former association with a controversial group, or membership in a group whose ideas or practices run counter to the cultural or social convention of the country. The latter group might seem plausibly alterable, but we respect an individual's right to maintain characteristics that are "fundamental to their individual identities." Escobar, 657 F.3d at 545. Cece could find a man to marry to protect her (and anachronistically, the lawyer representing the government in this case inquired why she had not done just that (R. 172)), but this is the type of fundamental characteristic change that we do not ask of asylum applicants. See, e.g., Agbor v. Gonzales, 487 F.3d 499, 502 (7th Cir. 2007) (women who are opposed to and fear female genital mutilation); Sarhan v. Holder, 658 F.3d 649, 654 (7th Cir. 2011) (women who "in accordance with social and religious norms in Jordan, are accused of being immoral criminals and, as a consequence, face the prospect of being killed without any protection from the Jordanian government."); and Yadegar-Sargis v. INS, 297 F.3d 596, 603 (7th Cir. 2002) (Christian women in Iran who do not wish to adhere to the Islamic female dress code). See also Al-Ghorbani v. Holder, 585 F.3d 980, 996 (6th Cir. 2009) (social group that opposes the repressive and discriminatory Yemeni cultural and religious customs that prohibit mixed-class marriages and require paternal consent for marriage); Safaie v. INS, 25 F.3d 636, 640 (8th Cir. 1994) (Iranian women who advocate women's rights or who oppose Iranian customs relating to dress and behavior); Fatin v. INS, 12 F.3d 1233, 1241 (3d Cir. 1993) (Iranian women who refuse to conform to the government's gender-specific laws and social norms).
Members of a social group need not be swimming against the stream of an embedded cultural norm. Sometimes the characteristic is immutable because a shared past experience or status has imparted some knowledge or labeling that cannot be undone. Acosta, 19 I. & N. Dec. at 233. Thus we have held that former truckers (or, more generally, those with a special skill needed by the persecutors) constitute a social group because their past actions and acquisition of skills are unchangeable, Escobar, 657 F.3d at 545-46; as do the subordinates of the attorney general of Colombia who had information about insurgents plaguing that nation, Sepulveda v. Gonzales, 464 F.3d 770, 771-72 (7th Cir. 2006); former members of a violent and criminal faction in Kenya, Gatimi v. Holder, 578 F.3d 611, 614 (7th Cir. 2009); tattooed, former Salvadoran gang members who had since turned to God, Benitez Ramos v. Holder, 589 F.3d 426, 428-29 (7th Cir. 2009); parents of Burmese student dissidents, Lwin, 144 F.3d at 512; and the educated, landowning class of cattle farmers targeted by Columbian rebels, Tapiero de Orejuela v. Gonzales, 423 F.3d 666, 672 (7th Cir. 2005). See also Lukwago v. Ashcroft, 329 F.3d 157, 178 (3d Cir. 2003) (former Ugandan child soldiers who have escaped abduction, enslavement and torture).
In order to compare Cece's social group with the likes of those above, we must first determine the contours of her social group. Both the parties and the immigration courts were inconsistent, and the description of her social group varied from one iteration to the next. The inconsistencies, however, do not upset the claim. See In re Kasinga, 21 I. & N. Dec. 357, (BIA 1996) (the Board, recognizing that both the Immigration and Naturalization Service and the applicant "advanced several formulations of the 'particular social group' at issue"). And in one form or another, both Cece and the immigration judge articulated the parameters of the relevant social group.
On her application for asylum, Cece explains that she is a "perfect target" of forced prostitution because she is a "young Orthodox woman living alone in Albania." (R. 669). The immigration judge, in initially granting Cece asylum, collapsed this definition and described her social group as first, "a social group consisting of young women who are targeted for prostitution by traffickers in Albania, " (R. 128) and then a "social group consisting of women in danger of being trafficked as prostitutes." (R. 131). Thus the immigration judge omitted the important characteristic that Cece lived alone. There is no doubt that it should have been included in the immigration judge's description of social group, as so much of the testimony before him centered on Cece's status as a woman living alone. Cece testified at length that women do not live alone in Albania (R. 147-148, 167, 195, 674), that she did not know anyone who lived alone (R. 167, 173, 195, 207); that she was afraid to live alone, (167, 171, 197, 300, 674) and most importantly that she was targeted because she was living alone. See (R. 147-148, 158, 166, 172-73, 195, 197, 300, 304, 305). Similarly, the Albanian expert's testimony was focused on the risk of women who lived alone in Albania. (R. 229-30). Cece's brief before this Court noted several times that the Board failed to consider this formulation of the group. Opening Brief of Appellants before the three-judge panel of this Court, at 20, 22, 27.
We could surmise that the immigration judge's description of Cece's social group as one consisting of "young women who are targeted for prostitution by traffickers in Albania, " (R. 128) or "women in danger of being trafficked as prostitutes, " (R. 131) was simply shorthand for describing women who are vulnerable to trafficking. And we know that women in Albania become vulnerable to targeting when, for example, they lack protection from husbands and family members. We need not do too much surmising, however, because the immigration judge's order on remand—and really the only order that matters on this appeal—specifically concludes that her characteristics are "namely that she is a young woman from a minority religion who has lived by herself most of the time in Albania, and thus is vulnerable, particularly vulnerable to traffickers for this reason." (R. 120) (emphasis ours).
The Board's order rejects Cece's social group as being not cognizable under the Act because it "is defined in large part by the harm inflicted on the group, and does not exist independently of the traffickers." (R. 9). This is not a reasoned conclusion. As we have just described, the characteristics of the group consist of the immutable or fundamental traits of being young, female, and living alone in Albania. Even if the group were defined in part by the fact of persecution (and we do not believe it to be), that factor would not defeat recognition of the social group under the Act. Although it is true that "where a proposed group is defined only by the characteristic that it is persecuted, it does not qualify as a 'social group, '" the Board of Immigration Appeals has never required complete independence of any relationship to the persecutor. Escobar, 657 F.3d at 545 (emphasis ours). And just because all members of a group suffer persecution, does not mean that this characteristic is the only one that links them. Id. at 545-46. A social group "cannot be defined merely by the fact of persecution" or "solely by the shared characteristic of facing dangers in retaliation for actions they took against alleged persecutors." Jonaitiene v. Holder, 660 F.3d 267, 271-72 (7th Cir. 2011) (emphasis ours). That shared trait, however, does not disqualify an otherwise valid social group. Escobar, 657 F.3d at 547 (instructing that we cannot tease out one component of the group's characteristics to defeat the definition of social group). It certainly did not invalidate the social group in Agbor which consisted of "women who fear being circumcised should they return to their home countries, " despite the fact that the group was defined in large part by the persecution inflicted on the group. Agbor, 487 F.3d at 502. Nor did it disqualify "women in Jordan who have (allegedly) flouted repressive moral norms, and thus who face a high risk of honor killing." Sarhan, 658 F.3d at 654, 655. These women still had the immutable characteristics of gender, nationality, and the inability to alter their past labels of nonconformist.
"Women who fear female genital circumcision" sound a lot like "women who fear prostitution, " thus demonstrating that it is not fair to conclude that the group is defined by the harm or potential harm inflicted merely by the language used rather than determining what underlying characteristics account for the fear and vulnerability. The Board's cases instruct that we must look to see whether the group shares Acommon characteristics that members of the group either cannot change, or should not be required to change, because such characteristics are fundamental to their individual identities.” Escobar, 657 F.3d at 545 (citing Gatimi, 578 F.3d at 614, In re Kasinga, 21 I. & N. Dec. 357, 365-66 (BIA 1996)). In this case, although it is true that these women are linked by the persecution they suffer—being targeted for prostitution—they are also united by the common and immutable characteristic of being (1) young, (2) Albanian, (3) women, (4) living alone. For this reason we disagree with the Sixth Circuit's conclusion in Rreshpja v. Gonzales, that the social group of "young ...